Schindler v. Schiavo: The Real Negotiation for Your Soul


by Robert Benjamin

March 2005

Robert Benjamin “Pinellas Park, Fla., March 18---Doctors on Friday removed the feeding tube of Terri Schiavo, the severely brain-damaged woman at the center of a scorching multiyear legal battle, despite an extraordinary series of last-minute efforts to halt the process and prolong her life.” (New York Times, 3.19.2005, Abby Goodnough and Carl Hulse, front page)

I’ve tried desperately to avoid reading about the Schiavo case, and I can’t change the television channel fast enough when there is video footage of Terri Schiavo straining in her bed. It’s too painful, there is nothing I can do about it, and per usual, a very difficult and personal family issue has been presented in an absurdly simplistic way that aggravates me no end. The discussion is made into one about who is morally, legally, and medically right or wrong. Both sides righteously claim to be serving Ms. Schiavo’s “best interests”, but from all outward appearances seem more intent on vilifying the other side rather than looking to her needs. She certainly does not need a “scorching multiyear legal battle.” Mr. Schindler, Ms. Schiavo’s father, terms his fight a “spiritual battle” against the “devils in the room”, while George Felos, Mr. Schiavo’s attorney, refers to the actions of the other side as “thuggery” by fanatics.

This resulting street fight---that is what it is--- is quintessentially American. There is the perfect mix of science and religion. The Doctors diagnostic certainty of Ms. Schiavo as being in a “Persistent Vegetative State” is contrasted with the perfect faith and belief in a God that has dictated clear instructions on the nature of life. We like our fights clearly drawn so we can choose sides in the resulting crusade. This is a Passion Play, if ever there was one. The script follows almost to the word the original of the torture and crucifixion of Christ. The innocent sacrificial victim is known. All the rest of us have to do is decide who we are: the Roman persecutors or the Christian protectors. Of course, what’s a Passion Play without the betrayers, in this case, those would be anyone who might counsel negotiation.

I did a ‘Google’ search in gathering background information. The key word “Schiavo” yielded 1,280,000 results; “Schiavo-settlement”, or “-negotiation”, or “-mediation”, gave zero results. There apparently was some effort by the court appointed Guardian Ad Litem, Jay Wolfson, to mediate a settlement, but reports differ as to who was more intransigent, Mr. Schindler or Mr. Schiavo. I have no information as to the GAL’s background or training as a mediator, but the roles GAL and mediator, while they might converge, aren’t necessarily the same and sometimes can be in conflict. But after a fair amount of investigation, I could find no evidence that there had been any real push from either side to negotiate, nor any active outside encouragement.

Yet, there is no reason to think that the matter might not be susceptible to mediation, at least, before being placed in the center ring of our cultural-political circus. And, more importantly, we need to challenge the unwarranted assumption that from all appearances, this matter could not be resolved without judicial or legislative intervention. Anyone who has practiced in this context--- lawyers, social workers, doctors, and judges ---know that neither of those approaches are particularly effective to resolve the kind of complex and increasingly common situation the Schiavo matter reflects. They are last resorts. It is at once an emotional/personal matter with, medical, legal, and economic ramifications. No law could be designed to be specific, yet flexible, enough to not require interpretation, and no Judge ever willingly takes on the burden of making the most difficult decision to end another human beings life, as Judge Greer is compelled to do in this case.

Ironically, lest this case be taken as the norm, end of life decisions are negotiated every day by families with their doctors throughout the country. Since the Karen Ann Quinlan matter in 1976, a fair number of health care facilities have developed processes that allow for the negotiation and mediation of difficult health care decisions, but those programs are uneven and vary widely in the extent to which they are available or used. Even when used, it would be naïve to think that the resulting settlements are anything less than painful, imperfect, and excruciatingly difficult. Many times family members disagree with each other or with the professionals, and sometimes take on a “don’t ask-don’t tell’ quality that comes perilously close to the legal line as all concerned choose to be be humane, despite the law.

My mediator gut instinct is to hear past the stated positions of all sides. I have my own biases that cut across both sides in this particular case. I know I don’t want the state, a Priest, Rabbi or Iman, let alone the United States Congress to make end-of-life decisions for me, and I don’t want a court to decide what I might have intended. The idea of intruding into someone else’s personal life is offensive to me. At the same time, while I’m sorry Ms. Schiavo never executed a clear medical directive, she could have and did not and I am reluctant to rely on anyone’s word to interpret her intention about a decision so final. The doctors’ medical diagnosis is a factor, but cannot be determinative and I have questions about how physically uncomfortable she is in her present condition, if that can be known, that necessitates an affirmative action to end her life.. Finally, I don’t believe that I have to be cynical or dubious about Mr. Schiavo’s intentions or motivations to note that the presence of a one million dollar personal injury award settlement might color this situation. But, my confusion is detached from any moral construction. In the end, however, as much as commentators do their armchair quarterbacking about the medical directive that should have, in a perfect world, been in place, it seldom works like that and majority of situations end up just like this one---messy. Like most conflicts, there are few, if any, saints or devils; just people struggling to make things just a little less painful.

Knowing all that, however, does not seem to blunt our cultural heritage that despite our pragmatic nature, discourages negotiation in favor of a right vs. wrong determination, imposed on all by the majority on the errant minority. We are taught there is a right answer to every problem from kindergarten. We are taught that we should argue, advocate, and if what we are fighting for is right, we will win. We aren’t taught how to survive---how to make things work just enough, and how to not be more intrusive than necessary in other’s peoples’ lives. Even if mediation had been tried in earnest in this matter, I don’t know if it would be successful; none of us can know that at the beginning. There is, however, no reason to think that it could not be. While there have been an abundance of moralistic pronouncements on both sides, that’s not unusual in most difficult conflicts. There is always posturing about what we deserve, what’s fair or what God wants of us. Those who suggest that you can’t negotiate when the other side is unreasonable or crazy, or it is a value conflict, haven’t studied history or dealt with many conflicts. All of us negotiate sometime---even when we claim we can’t or won’t. This situation is no different, except that the stakes are higher.

People don't particularly like to negotiate and do it only as a last resort. By that time, as is unfortunately apparent in the Schiavo case, the media glare and political angling have severly undercut the opportunity for private negotiations. Negotiation requires a certain measure of secrecy so that people can say what they are really thinking, not what they think people want to hear. Then, not without difficulty or emotion, they quite possibly might negotiate the allocation of the settlement funds, terms of responsibility for her care and a process for making future health and welfare decisions and when, if, and even how she should die. All of the stuff about which the outside world has the luxury of giving an opinion without having to endure the consequences.

The Schiavo case could be negotiated, but probably won’t be. Too many other people now have gotten into the act and have vested interests in maintaining the dispute. The timing isn’t right, and in negotiation, timing is everything. Knowing how to recognized good opportunities or to make them, it critical to success. The real tragedy of this case is that there is serious question about how much effective, skillful, sophisticated effort was brought to bear on the parties’ involved to make sure they knew that option was available.

As a society we don’t appear ready to allow ourselves to think or act in ways that encourage negotiation as a preferred mode of conflict management and it remains an afterthought. As Americans, we still dislike negotiation; God knows John Wayne would never negotiate---it’s a sign of weakness. Worse still, especially in this matter, negotiation carries an immoral taint, that is for some associated with the work of Satan, whose primary modus operandi is to “negotiate for your soul.”

Eventually, negotiation and mediation will be more readily available by design, for families in the health care system to deal with not only end of life decsions, but many other wrenching and difficult matters. Painfully, the Schiavo matter points up not only that we should be better about health care planning, but as well, the need to understand that no planning is full proof and there will always be the necessity to negotiate our way out of confused situations. And, the more complex the matter, emotionally, financially, legally, and in every other way, the more negotiation will be obligated. We have overlooked, resisted and failed to teach this fundamental skill set for too long. Our next task as a culture is to recognize the limits of law to solve the more complex problems of living and to garner the personal and moral strength to appreciate that we must arm ourselves with the skills to negotiate not only in our lives but for our deaths. We have to strip from the Devil his most potent skill and use it for good. He negotiates to take our souls, we need to learn to negotiate to save a soul or two. God knows Congress can't save souls. As best I can figure, if a soul is to be saved it is only done by how we treat each other as human beings in the most difficult circumstances.

March 19, 2005



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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care.  A lawyer and social worker by training, he practiced law for over 25 years and now  teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally.  He is a standing Adjunct Professor at  the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities.   He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution.    He is the author of numerous book contributions and articles, including “The Mediator As Trickster,”  “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com. 

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Website: www.rbenjamin.com

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 Norman ,   new york NY    04/24/05 
 Look at the facts and the law; don't be guided by emotion 
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During the media blitz over Terri Schiavo, people from various interest groups, mostly representatives of the Christian conservative movement such as Pat Buchanan's vitriolic sister Bayh Buchanan, made unsupported statements about Terri Schiavo having been abused by Michael Schiavo as if those statements were facts and too many members of the public accepted them as being true. Did anyone notice that long after the dust settled and the media moved on there was buried on page A-11 of the Saturday, April 16, 2005, issue of the New York Times in a small article titled "Report on Schiavo Finds No Abuse" the real fact that the Florida State Department of Children and Families investigated nine accusations of abuse made between 2001 and 2004 and that State agency found no clear evidence to support the allegations made by Robert Schindler and others that Terri Schiavo's hygiene was neglected, that she was denied dental care, that she was poisoned,that she was subjected to physical harm, etc. The lesson to be learned is one that litigator's and people who serve on juries learn quickly. Everyone comes to preliminary conclusions based on the information that they have available to them. However, notwithstanding those premiminary conclusions, we must keep our minds open and never judge the guilt or innocence of an accused unless and until we have heard and seen all of the relevant evidence. The Bayh Buchanans of our society have a constitutionally protected right to express opinions. However, members of the public, and especially the leaders and molders of public opinion, have a responsibility to base their public statements on the facts and the law and not on their religious beliefs or their political agenda and the rest of us have a responsibility to ourselves and to each other to understand the facts and the law before we come to conclusions on issues that affect society. Norman Jay ITzkoff
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 Norman Itzkoff,   new york NY    03/31/05 
 Reply to Luke 
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Hello Luke. You use the word "starve" and make what you call a moral judgment that removing the feeding tube was immoral. It might be helpful for you to read a bit more about what actually happens when a feeding tube is withdrawn from someone in Terri Schiavo's condition. The medical facts may cause you to change your mind about whether any suffering was involved. More troubling is your statement that after years of consideration by the courts you, who have not had the opportunity to review the evidence presented to multiple courts, have come to the purely emotional conclusion that we cannot know what Ms. Schiavo's wishes were "convincingly". If I were to tell you and everyone else on this list that if I were in Terri Schiavo's condition, whether you call it a persistent vegative state, or minimally conscious, or anything else, I would want the feeding tube removed from me and you and everyone else on this list were subpoenaed to give testimony in a court proceeding about what my intentions are should I fall into such a state in the future, would you agree that I have the right to make that decision for myself and that my oral expresson of that wish to you and everyone else on this list is valid evidence of what my wishes are? Best regards. Norman Jay Itzkoff
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 Luke ,   Phila PA    03/31/05 
 inhumane 
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Regardless of your stance on this issue, you must agree that to starve someone to death is immoral. Because we cannot know what Shaivo's wishes are convincingly, I see no harm in allowing her to live. If Shaivo does indeed have a level of consciousness (and she appears to) she would be suffering terribly as she starved. If the decision is made to let her die, I think lethal injection is no less humane. I would imagine that negotiation efforts were made in private before this issue gained such attention. Just because it didn't come up on google doens't mean it didn't happen.
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 A ,   Springfield WA    03/30/05 
 Couldn't agree more 
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I feel exactly the same way. The adage "hard cases make bad law" is well illustrated here. My view is that there's no way of determining what Terry Shiavo's wishes would have been, what her mental state is now, and whether she has been or is now suffering. I agree with the right to a dignified death, but I couldn't bear it if I truly believed, as the Schindlers appear to, that my child could be saved and her life support was withdrawn. This is a ghastly situation, and these decisions should not be made by the courts, the legislature, or especially the executive branch. Too bad this was not mediated from the get-go. But then this never would have made the news, would it? Perhaps a good thing that could come from this case could be increased awareness of the benefit that early mediation can play.
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 Norman ,   new york NY    03/30/05 
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The basic issue in the Terri Schiavo case is not subject to negotiation as the author suggests. Our legal system confers upon each of us the right to refuse, for whatever reasons each of us deems sufficient, the administering of life prolonging medical measures. The basic issue in the Schiavo case is to ascertain what, if anything, her wishes in that regard are. In the absence of a living will, our legal system confers upon the courts the responsibility to determine by clear and convincing evidence, if such evidence exists, what the person's wishes are. One possible outcome of such an inquiry is that there is not sufficient clear and convincing evidence to determine the person's wishes. However, that was not the determination in Ms. schiavo's case. The court determined that she did express her wishes by clear and convincing evidence at a time when she was legallly competent to do so. Whatever your religious beliefs, I suggest you should respect Ms. Schiavo's wishes and you should respect our judicial system and not try to negotiate away the rights of Ms. Schiavo or any of the rest of us. Norman Jay Itzkoff
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